Guest Checkout Terms of Service
Effective Date: September 20, 2021
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ANY SERVICES. THESE TERMS OF SERVICES ARE SUBJECT TO BINDING ARBITRATION AND WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE DISPUTE RESOLUTION AND ARBITRATION SECTION BELOW.
Plastiq offers several services including a platform that enables members to make payments to third parties (“Payor”) or receive payments from third parties (your “Biller”). See below for additional details. Plastiq offers limited access to its Services for Guest Users in the United States or Canada and may charge a fee (“Fee”) for the use of the Services.
Currently supported Payment Methods are enumerated in Section 4 of this Agreement. Plastiq does not issue payment cards or extend credit.
By submitting a Payment via the Plastiq Services, you agree to remain bound by all applicable terms and conditions of the Recipients to whom you submit Payments. You further acknowledge that your use of Plastiq Services does not alter or affect any Recipient payment terms including but not limited to deadlines, payment plans, late fees, and refunds. Any obligations arising from your relationships with Recipients may not be assigned to Plastiq.
If you reside in the state of Texas, this is a legal Agreement between you and PLV Inc. DBA PLV TX Branch Inc., a Plastiq Inc. subsidiary. For Texas residents, “Plastiq,” “we,” and “us” refer to both PLV Inc. DBA PLV TX Branch Inc. and Plastiq Inc.
If you reside in Canada, this is a legal Agreement between you and Plastiq Canada Inc., a Plastiq Inc. subsidiary. For Canadian users, “Plastiq,” “we,” and “us” refer to both PLV Inc. DBA PLV TX Branch Inc. and Plastiq Inc.
Plastiq acts solely as a third party payment facilitator and processor to the party which has sent you the payment request (“Recipient”). The Recipient will receive any funds and data associated with your payment. You agree that Plastiq is not a party to any agreement you may have with the Recipient to whom you are making a payment and any disputes are solely between you and the recipient.
Accordingly, Plastiq assumes no responsibility and will have no liability for any consequences resulting from your interactions or Agreement with Recipients, including but not limited to payment terms, the proper and timely delivery of goods or services, and any associated disputes which may arise. Plastiq in no way endorses, recommends, or bear any responsibility or liability for any products, services or statements presented by your Recipients. Recipient statements and opinions are not representative of Plastiq or its business partners.
3 Fund Ownership
Plastiq does not take legal ownership of the principal funds initiated to the Recipient. All funds are held in an “For Benefit Of” account (“F/O/B Account”) at Silicon Valley Bank (SVB) that is held in SVB’s name. The F/O/B Account reflects that this account is for the benefit of Plastiq’s customers. Plastiq has the right to instruct SVB on the use of funds in the account, including to receive and forward funds from you and to your Recipient based on your instructions.
SVB acts only as a service provider to Plastiq, and its role in the completion of a payment is restricted to treasury disbursement. You are not a customer of SVB. Plastiq provides card processing services to you and dispatches payment instructions to SVB for the purpose of accomplishing these payments.
For transactions involving PLV Inc., principal funds do pass to PLV’s legal ownership.
YOUR PLASTIQ ACCOUNT
To be eligible to use the Services, you must: (i) be an individual at least 18 years of age or an entity registered in the United States or Canada and able to form legally binding contracts under applicable law, (ii) have a valid and active email address, and (iii) have a valid payment card issued on the MasterCard®, Visa®, Discover®, JCB® or Diners Club® networks or a valid bank account in your name (“Payment Method”).
Furthermore, If you use the Services on behalf of another, whether a natural person or legal non-natural person or entity, you represent and warrant that you are duly authorized and empowered by and for that person or entity to agree to and accept this Agreement on behalf of the person or entity, and represent and warrant that you are duly authorized and empowered to use the Services on behalf of the person or entity.
6. Guest Users
At any time during the term of this Agreement and your use of the Services, we may require additional information from you to verify beneficial ownership or control of the business, validate the information you provided, and verify you or the identity of your business. If Plastiq cannot verify your identity, Plastiq reserves the right to deny you use of the Services.
Plastiq reserves the right to review or place a hold on any payment requested through our Services for any reason, including but not limited to credit and fraud risk or compliance with applicable laws, such as anti-money laundering regulations, combating terrorist financing laws and OFAC sanctions. In our sole discretion, Plastiq may place a hold on a payment for as long as reasonably necessary to conduct an appropriate inquiry regarding the payment or any related facts or circumstances. Depending on the results of this review, Plastiq reserves the right to take any appropriate action, including declining the payment, refunding the payment, or continuing to hold the payment pending instructions from a government agency.
Furthermore, If we have reason to believe that you have used our Services inappropriately, such to violate or potentially violate of applicable law, regulation, rule, or the legal interest of another we may limit your access to the Services; hold, return, or reclaim funds; update information provided third parties; decline to provide Services to you or related parties in the future; contact your bank, other Users, law enforcement, or other third parties; or take legal action.
7. Applicable taxes and penalties
You are responsible for all, if any, applicable taxes arising from your use of the Services. You are furthermore responsible for all fees, fines, penalties and other liability incurred by Plastiq, yourself, or a third party caused by or arising out of your breach of this Agreement, and/or your use of the Services. You agree to reimburse Plastiq or a third party for any and all such liability.
In the event that you are liable for any amounts owed to Plastiq, Plastiq may initiate a transaction via your default Payment Method or other available payment methods to pay any such amounts. If you do not have sufficient funds available to fulfill such payment, Plastiq may engage in collection efforts and/or other legal actions to recover such amounts from you.
8. Payment Methods
When adding a Payment Method, you agree you have the authority to disclose the Payment Method information and to bind the person or organization for which you act, and you authorize the initiation of debit or credit entries, or ACH transfer, as applicable, to the payment methods in accordance with instructions inputted through the Services, and, if necessary, the initiation of adjustments for any transactions debited or credited in error.
Debit or credit cards. Cards issued on the following payment networks may be used as payment methods via the Services:
Your cards may be authorized to confirm their validity. A temporary, small authorization charge may appear on your card statement. Plastiq will only use this process to screen for fraud and will not otherwise charge your card, except for your use of the Services.
ACH Payments. Guest User may create payment requests directly from eligible checking or savings accounts held by you at a regulated financial institution by means of the Automated Clearing House (“ACH”) transaction. By requesting such a transfer, you represent that you are the owner of such bank account or have authority related to such bank account and, if there are additional owners, you are authorized by them to make such a transfer and take all other actions required or permitted by this Agreement. When you provide us with your bank account information, we may verify your authority and/or access to the bank account you identify. You give Plastiq the right to resubmit any ACH debit that is returned for insufficient or uncollected funs or any other reason. The payment will be governed by the rules established by NACHA, the Electronic Payment Association, as in effect from time-to-time. You may cancel an ACH Payment as long as it has not been processed for payment each business day by emailing firstname.lastname@example.org with the payment details.
Payment Methods. All Payment Methods usage associated with payments submitted via the Services are subject to existing terms of your provider, including any relevant credit or transactional limits, credit and interest terms, and/or rewards programs. Where applicable, Plastiq retains all rights and authority for the treatment of your Payment Methods via the Services.
To prevent fraud and comply with legal obligations, we may ask for additional information from you and from third parties. Your payment may be put on hold for review. If you do not cooperate within our review process, your payment may be delayed or declined. We may impose limitations on the size, frequency, and timing of payments. We may decline to make payments or otherwise deny you use of the Services, and we may decline to explain why.
Issuing Bank. Plastiq makes every attempt to process the payment using the Payment Method selected. However, use of your Payment Method is governed by the terms and treatment of your issuing bank, including any credit or transactional limits and the conditions for any rewards programs.
Certain Payment Methods can be limited to industries or categories by Issuing Banks. Plastiq does its best to note non-accepted categories with clear warning messages. For a current list of non-accepted categories for each Payment Method, visit the Help Center. In selecting a recipient category, you acknowledge the information you are providing is accurate and are in compliance with your Issuing Banks terms.
Furthermore, your transactions may be treated by the Issuing Bank as a cash advance even though Plastiq codes the transactions as purchases. If this is the case, we will notify you prior to payment submission. If you prefer to use another Payment Method you may switch to a different card or opt out of submitting the payment altogether. For a current list of cards which may treat your purchase as a cash advance, visit the Help Center.
Given that the final determination related to the payment request is up to the Issuing Bank you agree not to hold Plastiq liable for any consequences resulting from issuer treatment of card authorizations, which may include but are not limited to cash advance fees, impacted reward program earnings, or altered credit programs and interest rate terms.
10. Payment Submission
You must pay with a valid Payment Method at the point of payment. Payment submission requires at least the following to be specified:
- First and last name;
- Payment amount;
- Invoice or Account Number;
- a Payment Method;
- any applicable Payment Data
You are responsible for verifying the accuracy of payment details and Plastiq will have no liability for losses or damages due to your or your Recipient’s actions or inactions. Any or all of the above fields may be pre-filled for you, particularly if you were referred to the Plastiq Services for your payment.
Payment Data. The data fields are depended on the Payment Method selected and are subject to change at any time. Payment Data may include but is not limited to card number; cvv; expiration; cardholder name; account address; and/or bank account and routing number. Plastiq may require additional information from you at the time of payment submission, which is primarily used to help Recipients acknowledge and account for your incoming payments. Recipients that partner with Plastiq may customize the information they collect from you via Plastiq.
Satisfactory Goods or Services. By submitting your payment for processing, you agree that the goods or services provided by your Recipient have already been rendered or received and are to your satisfaction. You hereby forfeit any future claims regarding undelivered goods or services, or insufficient or unexpected quality or untimely delivery of the goods and services provided.
Payment Processing. Payments submitted for immediate processing will require successful Payment Method authorization at the time of submission, while payments marked for future processing will require Payment Method authorization on the Processing Date indicated for the payment. If a Payment Method fails to authorize, Plastiq will be unable to continue to process your payment, and will notify you via the Services.
The failure of any portion of the payment process, which many include but are not limited to additional authorizations, third-party service calls, and fraud analyses will result in a full rollback of any completed portions of the submission. Occasionally, this may require the void of previously succeeded Payment Method authorizations. Depending on your Payment Method, your billing statement may show temporary authorizations from Plastiq, which should disappear without any action within a couple days to a few weeks. You agree to absolve Plastiq of liability for any of the consequences which may arise from execution of a payment rollback, including pending authorizations which may temporarily reduce your available credit line.
Payment Delivery. A payment’s fund disbursement channel and expected delivery timeframe will be presented to you upon review, prior to submission. The expected delivery time frame is a projected estimate based on Plastiq’s historical performance for a given disbursement channel, and is subject to change. You release Plastiq from any liability related to a delay in the expected delivery date.
11. Restricted Activities
You agree not to use the Services for any of the following “Restricted Activities”:
- For unsupported transfers, including
- To yourself or an entity in which you have control;
- On behalf of another party;
- Not in direct exchange for a rendered good or service;
- To escrow accounts where a contract cannot be provided;
- For goods or services whose delivery or completion has not yet been confirmed;
- Short term rental and/or vacation payments;
- As a donation to an organization not classified as a registered charity;
- Other than for legitimate payment purposes (e.g., to test or probe card behaviors).
- For unsupported goods and services, including
- Gambling and related activity (such as lotteries, poker chips, bidding fee auctions, sports forecasting or odds making, fantasy sports leagues, internet gaming, contests, sweepstakes, and games of chance);
- Unsupported debt types – such as credit card balances or uncollateralized personal loans (when using credit cards as the payment method);
- Certain investment accounts or to fund unsupported investments, including but not limited to 401(k) accounts, 403(b) plans, 457 plans, 529 plans, and IRAs;
- Drug paraphernalia, synthetic drugs and/or controlled substances and related goods or services;
- Tobacco including vapor, inhalants, e-cigarettes, and e-liquid
- Online pharmacies, pharmaceutical or nutraceutical products or services, or internet pharmacy referral sites;
- Gold, diamonds, precious metals;
- Pornography, obscene materials, bride catalogs, escort services, and sexually-related services;
- Hate-related material, rape/violence, bestiality;
- Weapons, jammers, munitions, gunpowder, fireworks, and other explosives;
- Pawn shops, paper mills, payday loans;
- Counterfeit goods, ponzi schemes, multi-level/affiliate marketing businesses, or any money making schemes;
- Resale of social media activity;
- Travel tickets;
- Foreign exchanges;
- Malware, spyware, phone unlocking services;
- Toxic, flammable, and radioactive materials; or
- Other goods and services subject to government regulation.
- For uses not supported by specific Payment Methods, as stated in this article
- In violation or potential violation of applicable law, regulation, rule, or legal interest, including,
- Sending or receiving potentially fraudulent funds;
- In the course of any activity regulated by the Financial Crimes Enforcement Network (FinCEN) or any other relevant regulatory body;
- Infringement or potential infringement of any party’s copyright, patent, trademark, trade secret or other intellectual property rights, or rights of publicity or privacy;
- Acting in a manner that could be defamatory, trade libelous, threatening or harassing;
- Using the Services in violation of applicable payment network rules;
- In a manner detrimental to our provision of the Services, including
- The provision of outdated, false, inaccurate, or incomplete information;
- Using any promotional or referral programs in a manner deemed abusive or against the intention of said programs;
- Maintain or using multiple Accounts;
- Allowing other individuals to access or use your Account;
- Using an anonymizing proxy;
- Using the Services in a manner that results in or may result in complaints, disputes between a User and Plastiq, Claims, chargebacks, fees, fines, penalties and other liability to Plastiq, a third party, or you;
- Imposing unreasonable demands on our technical or personnel resources;
- Facilitating viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or Information;
- Using any robot, spider, other automatic device, or manual process to access, monitor or copy our Website without our prior written permission;
- Using any device, software or routine to bypass our robot exclusion headers, or interfere or attempt to interfere, with our Website or the Services;
- Taking any action that may cause us to lose any of the services provided by our Recipients, payment processors, or other suppliers;
- Reselling, re-skinning, or otherwise distributing our Services;
- Breaching this Agreement or any other agreement or policy that you have agreed to with Plastiq.
If you have a payment use case which is not explicitly mentioned above, and for which you would like to confirm support, please check with our Member Services team by emailing email@example.com.
12. Payment refunds
Your Recipient should have posted an exchange or return policy in accordance with applicable rules, such as those issued by credit card networks, the Payment Card Industry, among others. If any of the following are applicable for returns, your Recipient should have incorporated it as part of its policy: (a) no refund, or less than a full refund, will be given, (b) returned merchandise will only be exchanged for similar merchandise of comparable value; (c) only a credit toward purchases will be given; or (d) special conditions or circumstances apply to the sale (i.e: late delivery, charges, or other noncredit terms). You understand that an exchange or return policy is issued by the Recipient and not Plastiq, and your recourse for any policy violations is between you and the Recipient.
Plastiq is unable to initiate refunds in cases where a Recipient has already received your Payment. If this is the case, you should contact your Recipient directly to request a refund, pursuant to their payment terms.
In the event of a refund of the total funds to be sent to a Recipient, Plastiq may at its discretion refund an amount of the Plastiq Fee. Principal refunds effected via clawback or chargeback mechanisms, however, will not result in a refund of the Plastiq Fee, in whole or in part.
13. Issues and inquiries
If you encounter any payment-related issues or have a question about your payments, please contact firstname.lastname@example.org. Including any relevant Payment IDs in your messages will help our team provide you better, quicker service. Payment IDs are presented on your Payment confirmation page and email notifications.
If you message us from an email that does not match the one associated to your Payment ID with Plastiq, or via an alternate channel like social media or SMS, we may require further verification of your identity prior to providing any information or making any changes.
For Texas users who have contacted Plastiq and still have an unresolved complaint regarding the company’s money transmission or currency exchange activity, please direct your complaint to: Texas Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705, 1-877-276-5554 (toll free), www.dob.texas.gov
If a payment issue can be traced to some deficiency or defect in the Services, Plastiq will use commercially reasonable efforts to fulfill its responsibilities as represented in this Agreement. You agree that Plastiq is not liable for any costs or difficulty arising from actions we may take in the process of investigating or rectifying a Payment issue. You are responsible for confirming the correctness and completeness of your payment at the time of submission. If a payment issue can be traced to any incorrect or incomplete information you confirmed at the time of Payment Review, even for information which may have been pre-filled by Plastiq or a third party, you agree to hold responsibility for any resulting consequences, which may include but not be limited to an unintended Recipient accepting and retaining your payment, an issue in a Recipient accounting for your payment, or an inability to complete your payment.
At this time, Plastiq treats payments as atomic operations, which means that once a payment is processed, it must be either completed or cancelled. One consequence of this policy is that Plastiq cannot support re-issuing checks (cheques) or resending electronic disbursements for payments. If your recipient has misplaced, disposed of, or not received your payment, we can cancel it and refund your Payment Method, and you can either re-submit via Plastiq or via another channel.
If you seek to contest a payment made through the Services, Plastiq encourages you to contact email@example.com to resolve this dispute. Together we will work with the Recipient to find a solution.
In the event the dispute could not be resolved, and it is determined by Plastiq there has been a breach of this Agreement we may pursue any action necessary to collect on an outstanding balance due. You agree to pay all costs and expenses, including attorneys’ fees and other legal expenses, incurred by us for the collection of all amounts unpaid by you.
In the event that we are required to pursue the Recipient for the outstanding payment, you agree to assign to Plastiq any claims against your Recipient associated with such chargeback, clawback, or ACH return. You further agree that we may contact your Recipient directly to request reimbursement for any payment that has been transmitted to the Recipient and for which you have initiated a chargeback, clawback, or ACH return.
For Visa Business Cards, Plastiq is a Business Payment Solution Provider (“BPSP”). By continuing to use the Services, you agree to accept all risks associated with any non-performance by your Recipient. You hereby forfeit any disputes regarding insufficient or unexpected quality or untimely delivery of the goods and services provided.
OTHER LEGAL TERMS
15. Consent to Electronic Disclosures
By accepting this Agreement, you agree and consent to receive electronically all communications, agreements, documents, notices, and disclosures (collectively “Communications”) in connection with your Services. Communication includes but is not limited to:
- Transaction related documents; and
- Any other notices, legal communications, or disclosures.
To receive this Communication electronically, and access and retain any disclosures received, you will need the following computer and software:
- A computer or mobile device with an internet or mobile connections;
- For desktop website-based Communication, a modern web browser that includes 256-bit encryption, such as the current version of Chrome; Internet Explorer; Mozilla Firefox, or Apple Safari;
- For application-based Communication, a recent device operating system that supports text messaging, downloading, and Plastiq application;
- Access to your primary email address registered with Plastiq; and
- Sufficient storage space to save past Communications or an installed printer to permit them.
By giving your consent, your are confirming that you have access to the necessary equipment and are able to receive, open, and print or download a copy of any Communications for your records. It is important for you to retain copies of Communications because they may not be accessible in your Account at a later date.
You may withdraw your consent to receive most electronic communications from Plastiq by emailing us at firstname.lastname@example.org or following the unsubscribe procedure contained in any electronic communication you receive from us. However, if you withdraw your consent, you may no longer be eligible to use certain portions of the Services. Withdrawing your consent will not affect the completion of pending Payments or the validity of completed Payments.
By providing contact information such as email address and phone number of parties you pay and/or request payments from via the Services, you are granting Plastiq implied consent to send business-related communications, including marketing and product updates. The receiver of the communications may opt out of receiving marketing messages at any time via the opt-out link provided in each message. Standard rates and text charge may apply. Additional promotional or marketing messages may be sent using the same short-code or phone number, but only after you provide additional express written consent to receive such messages. You may opt-out of receiving these messages at any time via chat online or replying STOP to your text message.
If you are a Florida resident please note: By executing the agreement, the called party authorizes the person making or allowing the placement of a telephonic sales call to deliver or cause to be delivered a telephonic sales call to the called party using an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when a connection is completed to a number called. You are not required to directly or indirectly sign the written agreement or to agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
Email. By providing your email address to Plastiq, you agree to receive business related communications, including marketing and product updates. Plastiq will send the communication to any of the contact information provided to us in connection with your Plastiq Account. You may opt-out of receiving marketing messages at any time via the opt-out link provided in each message.
Per the Canadian Anti-Spam Law, the affirmative use of a check box by members located in Canada is not interpreted by the Company as explicit consent to receive messages beyond the two-year period permitted with implied consent.
17. Contacting Plastiq
Unless otherwise stated in this Agreement, notices, inquiries, and requests to Plastiq should be emailed to email@example.com. For your convenience, the Services may also make available communication channels for live chat and support tickets.
Please note that email communications sent to Plastiq for Account-related matters (e.g., late fee reimbursements, refund requests, etc.) must come from the email address listed with the associated Payment ID. Account-related communications initiated via other channels may require identity verification in order to obtain information or change settings.
In connection with your use of the Website and/or Services, you may elect to submit feedback, suggestions and/or other comments regarding the Website and/or the Services (collectively, the “Feedback”). Plastiq may, in its sole discretion, decide to incorporate some or all of this Feedback into the Website and/or the Services. You hereby grant Plastiq a worldwide, perpetual, nonexclusive, sublicensable, royalty-free license to use, reproduce, distribute, transmit, disclose, display, modify and create derivative works of all such Feedback. You further represent and warrant that you have all rights necessary to provide Plastiq the Feedback and that the use of the feedback by Plastiq will not violate, infringe otherwise misappropriate any third party rights.
18. Limitation of Liability
IN NO EVENT SHALL PLASTIQ, AND ITS AFFILIATES (AND THOSE THAT PLASTIQ WORKS WITH TO PROVIDE THE SERVICES) (COLLECTIVELY, “PLASTIQ PARTIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING FROM YOUR ACCESS TO, OR USE OF, OUR WEBSITE, OUR SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). THE TOTAL LIABILITY OF THE PLASTIQ PARTIES (IN AGGREGATE) TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF DIRECT DAMAGES ACTUALLY INCURRED IN THE SIX (6) MONTHS PRIOR TO THE DATE UPON WHICH THE APPLICABLE CAUSE OF ACTION AROSE. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages so the above limitation or exclusion may not apply to you. In such case, the liability of the Plastiq Parties shall be limited to the greatest extent permitted under applicable law.
19. Disclaimer of Warranties
THE PLASTIQ PARTIES PROVIDE OUR SERVICES ON AN “AS IS” AND “AS AVAILABLE” AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE PLASTIQ PARTIES ARE NOT RESPONSIBLE FOR YOUR OR PLASTIQ’S FAILURE TO PERFORM OBLIGATIONS UNDER THE AGREEMENT AND DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY YOU, PLASTIQ, OR ANY THIRD PARTY.
Plastiq does not have any control over the products or services that are paid for using the Services and Plastiq cannot ensure that a Recipient you are dealing with will actually complete the transaction or is authorized to do so. Plastiq does not guarantee continuous, uninterrupted or secure access to any part of our Service, and operation of our site may be interfered with by numerous factors outside of our control. Plastiq will make reasonable efforts to ensure that requests for electronic debits and credits involving credit cards are processed in a timely manner but Plastiq makes no representations or warranties regarding the amount of time needed to complete processing because the Services are dependent upon many factors outside of our control, such as delays in the banking system. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimers may not apply to you. This paragraph gives you specific legal rights and you may also have other legal rights that vary depending on the jurisdiction in which you are resident.
You agree to indemnify, defend, and hold harmless Plastiq, its affiliates, and their respective directors, officers, employees, and agents from any and all claims, liabilities, damages, losses or expenses, including reasonable attorneys’ fees and costs, by any third party due to or arising out of: (a) your access to or use of the Services; (b) your breach of this Agreement; (c) your violation of any law or the rights of a third party; (d) any dispute or issue between you and any third party; and (e) your gross negligence or willful misconduct.
21. Complete Agreement
This Agreement together with any other Plastiq documents, policies and/or agreements referenced herein sets forth the entire understanding between you and Plastiq with respect to the Services. The following sections of this Agreement and all other terms which by their nature should survive, will survive the termination of this Agreement: 18 (Limitation of Liability), 19 (Disclaimer of Warranties), 20 (Indemnification), and the General Section. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.
22. Intellectual Property
Trademarks. “plastiq.com”, “Plastiq”, and all logos or websites related to Plastiq, are either trademarks or registered trademarks of Plastiq or its licensors. You may not copy, imitate or use them without Plastiq’s prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Plastiq. You may not copy, imitate, or use them without our prior written consent.
Copyrights. The content and material provided as part of the Services, as well as the organization and layout of this Website and Mobile App are copyrighted and protect by United States and international copyright laws and treaty provisions. You may access, download and print material on this Website solely for our personal and non-commercial use; however, any use of this content or material must include Plastiq’s copyright notice. No right, title or interest in any of the content or material provided through the Services is transferred to you and all right, title and interest in and to the Plastiq website, any content thereon, the Services, the technology related to the Services, and any and all technology and any content created or derived from any of the foregoing, is the exclusive property of Plastiq and its licensors.
Third party provided content. The Service may permit you to upload or publish text, images and other content (“Third Party Content”). You represent and warrant that you have the rights and/or permission to upload or publish such Third Party Content. You grant Plastiq a nonexclusive, perpetual, and royalty-free license to use the Third Party Content related to your Service.
23. External Links
The Website may contain links to third‐party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content, products, or services (collectively, “External Content”) of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any External Content located on such External Sites. We are not responsible for the Content of any linked External Sites and do not make any representations regarding the accuracy or functionality of any External Content on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access any External Sites, you do so at your own risk.
24. Arbitration; Class Action Waiver
YOU HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS YOUR RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND US. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN THE SECTIONS BELOW.
Election to Arbitrate. You and Plastiq agree that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this Section (the “Arbitration Provision”), unless you opt out as provided below. As used in this Arbitration Provision, “Claim” shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us on the other hand, relating to or arising out of this Agreement, and/or the activities or relationships that involve, lead to, or result from this Agreement, including (except to the extent provided otherwise in the Section below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise, except that both you and Plastiq retain the right: (a) to bring an individual action in small claims court (a “Small Claims Action”); (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement. misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (an “IP Protection Action”); and (c) to bring an action seeking only injunctive relief, including public injunctive relief, in a court of competent jurisdiction. Claims include matters arising as initial claims, counter‐claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
Applicability of the Federal Arbitration Act; Arbitrator’s Powers. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (the “FAA”). The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
Opt-out. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to firstname.lastname@example.org, within thirty (30) days of the date of your electronic acceptance of the terms of this Agreement (such notice, an “Arbitration Opt-Out Notice”). The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and be signed by you. If you don’t provide Plastiq with an Arbitration Opt-Out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except with regard to a Small Claims Action, IP Protection Action, or to bring an action seeking only injunctive relief, as expressly set forth above.
Jurisdiction and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California without reference to conflict of law provisions. Any action proceeding arbitration hearing or mediation related to or arising from this Agreement must be brought, held, or otherwise occur in San Francisco County, California.
Informal Dispute Resolution. If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you may submit Claims by sending an email to email@example.com at any time.
WAIVER OF RIGHT TO LITIGATE. Unless you timely provide Plastiq with an Arbitration Opt-out Notice, YOU ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.
NO CLASS ACTIONS. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS), EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED) IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this Section, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this Section shall be determined exclusively by a court and not by the administrator or any arbitrator.
Procedures. The party initiating arbitration shall do so with Judicial Alternatives and Mediation Services (“JAMS”). Claims involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules; all other Claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
Fees. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If either party prevails in the arbitration of any Claim against the other, the non-prevailing party will reimburse the prevailing party for any fees it paid to JAMS in connection with the arbitration, as well as for any reasonable attorneys’ fees incurred by the prevailing party in connection with such arbitration or collection.
Decision. The arbitrator will render an award within the time frame specified in the administrator rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Any decision rendered in such arbitration proceedings will be final and binding on the parties, and judgment may be entered in a court of competent jurisdiction.
Survival and Severability. This Arbitration Provision shall survive the termination of this Agreement. If any portion of this Arbitration Provision is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If there is a final judicial determination that applicable law precludes enforcement of this Arbitration Provision’s limitations as to a particular claim for relief or particular term, then that claim (and only that claim) or that term (and only that term) must be severed from the Arbitration Provision and may be brought in court. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings are finally adjudicated to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
Plastiq affiliates are third-party beneficiaries. Affiliates of Plastiq are not parties to this Arbitration Agreement but are third-party beneficiaries of your agreement with Plastiq to resolve disputes through informal negotiation and arbitration.
25. Governing law and jurisdiction
In the United States, this Agreement, the Website, the Services, marketing materials associated with the Website or the Services, and the relationship formed between the parties as a result of this Agreement are governed and construed in accordance with the laws of the State of California, without giving effect to its choice of law provisions. Further, You agree to submit to the personal and exclusive jurisdiction and venue in the state and federal courts sitting in the City and County of San Francisco, California, for any and all disputes, claims, and actions arising from or in connection this Agreement, the Website, the Services, marketing materials associated with the Website or the Services, and the relationship formed between the parties as a result of this Agreement. In Canada, this Agreement, the Website, the Services, marketing materials associated with the Website or the Services, and the relationship formed between the parties as a result of this Agreement are governed by the laws of British Columbia.
26. Release of Plastiq
If you have a dispute with one or more Recipients or other third parties, you release Plastiq (and our officers, directors, agents, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature arising out of or in any way connected with such disputes.
27. Force Majeure
Plastiq shall not be liable for any issues or delayed performance caused by circumstances beyond Plastiq’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, service provider failures or delays.
28. System Availability
Plastiq will use commercially reasonable efforts to make the Services available at all times except for: (a) planned downtime for routine maintenance or system updates, or (b) any unavailability due to Force Majeure. Plastiq will attempt to notify you in advance of any planned downtime.
You may not transfer or assign any rights or obligations you have under this Agreement without Plastiq’s prior written consent. Plastiq reserves the right to transfer or assign this Agreement or any right or obligation under this Agreement at any time.
If any provision of this Agreement is held to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
31. No Waiver
If Plastiq fails or delays in exercising any right, power or remedy or to take action against any breaches of this Agreement, it does not mean that it waives its right at a later time to enforce the same.
If you decide to use our Services, you expressly agree that the agreement between you and us and any associated documents will be in the English language.